No.

16-333
================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------KODY BROWN, MERI BROWN, JANELLE BROWN,
CHRISTINE BROWN, ROBYN SULLIVAN,
Petitioners,
v.
JEFFREY BUHMAN, in his official capacity,
Respondent.
-----------------------------------------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
-----------------------------------------------------------------REPLY BRIEF FOR THE PETITIONERS
-----------------------------------------------------------------JONATHAN TURLEY
(Counsel of Record)
THE GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
2000 H St., N.W.
Washington, DC 20052
(202) 994-7001
jturley@law.gwu.edu
THOMAS M. HUFF
Attorney-at-Law
P.O. Box 2248
Leesburg, VA 20177
thuff@law.gwu.edu
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

i
TABLE OF CONTENTS
Page
I. The circuit split is real and squarely presented ...........................................................

A. The Courts of Appeals are divided over

the proper legal test for adjudication of
the voluntary cessation doctrine...........

B. The Courts of Appeals are divided over

the appropriate standard of review applicable to the voluntary cessation doctrine........................................................

II. The questions presented are important and

should be resolved in this case .................... 11
CONCLUSION..................................................... 14

ii
TABLE OF AUTHORITIES
Page
CASES
Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013) .... 4, 6, 7
Bell v. City of Boise, 709 F.3d 890 (9th Cir.
2013) ..........................................................................7
City of Mesquite v. Aladdins Castle, 455 U.S. 283
(1982) .......................................................................12
Cnty. of L.A. v. Davis, 440 U.S. 625 (1979) ........... 4, 5, 6
Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167 (2000) ............. 2, 4, 5
McCormack v. Herzog, 788 F.3d 1017 (9th Cir.
2015) ..........................................................................7
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) ............ 10, 11
United States DOJ Fed. Bureau of Prisons Fed.
Corr. Complex Coleman v. Fed. Labor Rels.
Auth., 737 F.3d 779 (D.C. Cir. 2013) .........................3
White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ..................7
OTHER AUTHORITIES
15 James W. Moore, et al., Moores Federal Practice, 101.91 (3d ed. 2016) ......................................11
15 James W. Moore, et al., Moores Federal Practice, 101.99[2] (3d ed. 2016) ....................................3

1
REPLY BRIEF FOR THE PETITIONERS
The Tenth Circuits decision in this case rewrote
the law governing the stringent doctrinal requirements
for invoking this Courts voluntary cessation doctrine,
significantly expanding its scope and deepening a split
of authority with the Second, Third, Eleventh, and D.C.
Circuits. Respondents efforts to reformulate the questions presented, deny the circuit split, minimize the
significance of the error, and provide alternative rationales for the court of appeals bottom-line conclusion
all lack merit. This Court should grant certiorari and
resolve the split of authority.
I.

The circuit split is real and squarely presented.

A. The Courts of Appeals are divided over
the proper legal test for adjudication of
the voluntary cessation doctrine.

The court of appeals decision in this case creates

a square split with decisions of the Second, Third, Eleventh, and D.C. Circuits. See Pet. 9-18. In these circuits,
a defendant seeking to moot a lawsuit by voluntary
cessation of the complained about activity must do so
completely and irrevocably, and must demonstrate
against probing scrutiny of its timing and content
that he or she has not done so for the tactical purpose
of depriving the court of jurisdiction.
Here, in contrast, the Tenth Circuit held that these
legal boundaries on the voluntary cessation doctrine
do not apply, and instead adopted a more permissive

2
approach that broadly assess[es] the likelihood that
defendants will recommence the challenged . . . conduct. App. 32 (citation omitted). Utilizing this disparate standard, it concluded that a newly adopted change
in prosecution policy announced during the pendency
of litigation was sufficient to moot a lawsuit under the
voluntary cessation doctrine irrespective of whether
the defendants change in behavior was tactical and
calculated to prevent adjudication of the federal claim
on the merits, App. 53-55, and irrespective of whether
the new executive policy is non-binding or revocable by
future prosecutors. App. 48-51.
1. Respondent first observes that all thirteen
courts of appeals accept the validity of Laidlaw. Opp.
i, 13-14. But of course, neither party questions the validity of Laidlaw; indeed, Petitioners cite it in the very
first sentence of their brief as the starting point to
their analysis: a defendant asserting mootness by voluntary cessation bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.
Pet. i (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-90 (2000))
(internal citations omitted).
The issue that divides the courts of appeals is not
the validity of Laidlaw, but rather the extent to which
it tolerates forms of voluntary cessation that are either
(1) non-binding and revocable, or (2) expressly found to
be tactical and calculated to prevent adjudication of
the federal claim on the merits. Neither Laidlaw nor
any of the other decisions of this Court cited by Respondent purport to resolve that circuit conflict.

3
Respondents wrongly describe these as fact-bound
differences that inevitably occur when courts apply the
same legal standard to disparate facts. Opp. 14. The
court of appeals decision was not based on a factual
dispute over whether Respondents prosecution policy
was irrevocable; indeed, the court accepted that it was
not. See App. 48-51. Rather, the court concluded contrary to its sister circuits that irrevocability was not
a legal requirement for mooting a case via voluntary
cessation. Id. Similarly, the court of appeals accepted
the proposition that Respondents newly adopted prosecution policy may indeed have been tactically motived, but likewise dismissed this as immaterial. See
App. 53-55.
2. Respondent next asserts that courts generally accord a presumption of good faith to government
defendants who voluntarily cease challenged conduct.
Opp. 15. Notably, Respondent does not cite any supporting authority by this Court, as the courts of appeals are also divided on this point. See 15 James W.
Moore, et al., Moores Federal Practice, 101.99[2], at
101.432.1-101.432.5 (3d ed. 2016) (Observing that
while [s]ome courts apply a presumption that the
government officials are acting in good faith[,] . . .
[n]ot all courts treat government defendants differently from other defendants when it comes to the voluntary cessation exception to mootness.) (collecting
cases); see also United States DOJ Fed. Bureau of Prisons Fed. Corr. Complex Coleman v. Fed. Labor Rels.
Auth., 737 F.3d 779, 783 (D.C. Cir. 2013) (federal BOP
held to heavy burden of demonstrating there was

4
no reasonable expectation it would resume the complained-of conduct). Thus, at most, Respondent points
to an additional conflict of authority under the voluntary cessation doctrine.
3. Despite mustering a conclusory denial, Respondent does not appear to directly contest Petitioners
identified split of authority between the approaches of
the Second, Third, Ninth, Eleventh, and D.C. Circuits
(all of which require a defendants voluntary cessation
to be complete[ ] and irrevocabl[e]), and the contrary
approach of the panel decision below (which permits a
finding of voluntary cessation even where the governments cessation policy is revocable, see App. 48-51,
and even where the government continues to defend
the constitutionality of the challenged law, see App. 5153). Compare Opp. 17-20 with Pet. 9-14.
Instead, Respondent attempts to reformulate the
circuit split as a [claimed] conflict in this Courts own
cases: between the formulations of the voluntary cessation standard in Friends of the Earth [v. Laidlaw]
and Davis, Opp. 19, which he suggests has been since
reconciled by this Courts subsequent decision in Already, LLC v. Nike, Inc., 133 S. Ct. 721 (2013). See Opp.
19-20. Respondent is wrong. No such conflict in this
Courts own cases exists; Davis, Laidlaw, and Already
are all in accord and none has been supplanted, either
impliedly or expressly. Nor have the decisions of the
courts of appeals that continue to faithfully apply
Davis.

5
3.a. Respondent correctly acknowledges that the
complete[ ] and irrevocabl[e] eradicate[ion] standard
was first elucidated by this Court in Cnty. of L.A. v.
Davis, which explained the stringent requirements of
the voluntary cessation doctrine as follows:
We recognize that as a general rule, voluntary
cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case, i.e., does not make the case
moot. But jurisdiction, properly acquired, may
abate if the case becomes moot because (1) it
can be said with assurance that there is no
reasonable expectation that the alleged violation will recur, and (2) interim relief or events
have completely and irrevocably eradicated
the effects of the alleged violation. When both
conditions are satisfied it may be said that the
case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and
law. The burden of demonstrating mootness is
a heavy one.
440 U.S. 625, 631 (1979) (citations and quotations
omitted) (emphasis added). Respondent also correctly
observes that two decades later in Laidlaw, this Court
again spoke on that standard, explaining that a defendant invoking the voluntary cessation doctrine
bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could
not reasonably be expected to recur. Laidlaw, 528 U.S.
at 190 (citation omitted). But nothing in Laidlaw purported to reject or supplant the Davis test; indeed, all

6
the courts of appeals cited in Petitioners brief continue
to faithfully apply it. See Pet. 9-14.
3.b. Respondents argument to the contrary is
without merit: He suggests that this Courts intervening opinion in Already, LLC v. Nike, Inc., 133 S. Ct. 721
(2013) has impliedly rejected the irrevocability
standard because it did not cite Davis in its discussion.
See Opp. 19. Respondent is wrong.
Already considered whether and under what circumstances a trademark counterclaim defendant could
moot an invalidity attack on its trademark by issuing
a covenant-not-to-sue during the pendency of litigation. See Already, 133 S. Ct. at 725. To be sure, the
Already Court concluded that Nikes issuance of a covenant-not-to-sue was sufficient to moot Alreadys counterclaims for invalidity. Id. at 728. But the Courts
decision turned on its express determination that the
covenant was unconditional and irrevocable:
The breadth of this covenant suffices to meet
the burden imposed by the voluntary cessation test. The covenant is unconditional and
irrevocable. Beyond simply prohibiting Nike
from filing suit, it prohibits Nike from making
any claim or any demand. It reaches beyond
Already to protect Alreadys distributors and
customers. And it covers not just current or
previous designs, but any colorable imitations.
Id. Quite plainly then, Already did not abandon the irrevocability standard; to the contrary, the case turned

7
in large part on the covenants compliance with that
standard. Contra Opp. 19-20.
3.c. Moreover, many of the circumstances that
made Already an appropriate case for certiorari apply
with equal force here. As Justice Kennedy observed in
a concurring opinion, relatively few cases [had] discussed the meaning and effect of covenants not to sue
in the context of ongoing litigation, Already, LLC, 133
S. Ct. at 734 (2013) (Kennedy, J., concurring); accordingly, he urged that [c]ourts should proceed with caution before ruling that they can be used to terminate
litigation. Id. But by granting certiorari, this Court
provided important guidance to the courts of appeals
in clarifying the circumstances under which such a
covenant may properly moot a case. This Court should
similarly intervene here to clarify the extent to which
a newly adopted prosecution policy may do the same.
4. Respondents attempt to discount the circuit
split between the Tenth and Ninth Circuits is also unavailing. Opp. 21-22. Contrary to his suggestion, the
Ninth Circuit decisions he cites follow the irrevocability standard either directly or impliedly by requiring
voluntary cessation to be entrenched and permanent. See McCormack v. Herzog, 788 F.3d 1017, 1025
(9th Cir. 2015); Bell v. City of Boise, 709 F.3d 890, 898901 (9th Cir. 2013); White v. Lee, 227 F.3d 1214, 1243
(9th Cir. 2000) (observing that a government agencys
moratorium that by its terms was not permanent
would not moot an otherwise valid claim for injunctive
relief.) (citation and quotation omitted). Although arguably less direct than the other identified circuits, the

8
Ninth Circuits entrenched and permanent standard
nonetheless squarely conflicts with the Tenth Circuits
opinion below, which dismissed as immaterial the revocable nature of the alleged voluntary cessation. See
App. 48-51.
5. Finally, Respondent errs in discounting the
split over whether a government defendant is legally
permitted to make tactical use of the voluntary cessation doctrine to prevent a court from reaching the merits. Respondent attempts to reframe this as a dispute
over merely whether the changes timing is relevant
to the mootness inquiry. Opp. 22 (emphasis added).
This is incorrect. While it is true that other circuits
agree that timing is relevant to the determination of
whether the government has acted tactically, the Tenth
Circuit has held that even if the prosecutor ruled out
prosecution because he wished to prevent adjudication
of the federal claim on the merits, App. 54-55, he may
still avail himself of the voluntary cessation doctrine.
As previously noted, this contradicts the positions of
its sister circuits. Pet. 10-12.
B. The Courts of Appeals are divided over
the appropriate standard of review applicable to the voluntary cessation doctrine.
The courts of appeals are similarly divided over
the appropriate standard of review. Contrary to Respondents attempted reformulation of the question
presented, see Opp. i, the district court in this case
resolved a disputed factual issue (namely, whether

9
Respondents newly adopted prosecution policy was
tactically motivated to defeat jurisdiction) in favor of
the Browns, which was then supplanted by the Tenth
Circuit on appeal under a de novo standard of review.
As outlined in Petitioners opening brief, had the
court of appeals followed the clear-error or abuseof-discretion standards employed by its sister circuits,
the district courts factual findings would have held
and Respondents mootness claim would necessarily
fail.
1. As explained in Petitioners opening brief, the
district courts adjudication of underlying factual issues was not limited to the four corners of the complaint. Pet. 16-17; contra Opp. 27. Instead, the district
court examined the timing and circumstances of Respondents new prosecution policy, and concluded that
it was motivated by the tactical aim of depriving the
court of jurisdiction:
[T]he timing of the policy implementation,
lack of any public notice, and lack of reasoning
given for adopting the policy suggest that the
policy was implemented, not to provide a remedy to Plaintiffs in this case, but instead to
evade review of Plaintiffs claims on the merits.
App. 78; see also App. 71-75.
1.a. The court of appeals supplanted this finding,
see App. 55-56, applying a de novo standard of review
for evaluating underlying factual findings relating to
voluntary cessation claims. See App. 32 (We have

10
addressed the standard of review for mootness based
on voluntary cessation. . . . We referred to this assessment as a factual inquir[y] and said [o]ur review of
this question is de novo. ) (quoting Rio Grande Silvery
Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1122
(10th Cir. 2010)).
1.b. Although the court of appeals stated in passing that its ruling did not turn on plenary or deferential review, App. 33, it did not purport to conduct an
alternative analysis under either a clear-error or
abuse-of-discretion standard of review (or even mention these standards), and indeed offered no deference
to the district court, which had spent two years adjudicating the case. Respondent identifies no version of
clear-error or abuse-of-discretion review that would allow such findings to be summarily reversed. Should
this Court adopt either the clear-error or abuse-ofdiscretion approaches used in other circuits, it would
necessarily follow that the court of appeals erred by
failing to conduct that analysis thus requiring at the
very least a remand with instructions to apply the appropriate standard.
2. Respondent contends that although the D.C.
Circuit reviews disputed findings of fact under a clearerror standard, it reviews undisputed facts de novo.
Opp. 27. This is correct, but again unresponsive to the
petition. As noted above, the district court resolved a
disputed factual issue in Petitioners favor, and it was
this disputed factual finding that was supplanted de
novo. Supra _[ 1 and 1a]_. At best, Respondent urges
a different standard of review for what he appears to

11
regard as a mixed issue of law and fact. This is an argument for the merits stage.
3. Respondent also contests the dissenting opinion of Judge Henry, who criticized the Tenth Circuits
de novo review of voluntary cessation cases, expressly
noting its departure from several sister circuits use of
an abuse-of-discretion standard. See Opp. 28, n.7; see
also Rio Grande Silvery Minnow, 601 F.3d at 1134-35
(Henry, J., dissenting). According to Respondent, these
contrary circuit decisions can be distinguished because
they were adjudicating a prudential rather than constitutional form of mootness. See Opp. 28-29 & n.7.
But he can cite no authority from this Court to support
that distinction, as the courts of appeals are also divided on this point. See 15 James W. Moore, et al.,
Moores Federal Practice, 101.91, at 101.351-101.354
(3d ed. 2016) (Noting that some courts refer to two
kinds of mootness: constitutional mootness and prudential mootness, but observing that the claimed
distinction runs serious risks owing to vagueness
concerns.) (collecting cases). Regardless, should Respondent believe that deferential forms of review
should be limited to prudential mootness, this too is an
argument for the merits stage.
II.

The questions presented are important and

should be resolved in this case.

Respondent also urges (Opp. 30-34) this Court to

deny review for a variety of prudential reasons. None
of his concerns has merit.

12
1. Respondents suggestion that the parties dispute has been cured by a proposed bill in the Utah legislature, see Opp. 30-32, is incorrect. This Court has
never held that a non-enacted legislative proposal can
moot a lawsuit; to the contrary, even duly enacted statutory changes are not necessarily sufficient to establish mootness. See City of Mesquite v. Aladdins Castle,
455 U.S. 283, 289 (1982) (In this case the citys repeal
of the objectionable language would not preclude it
from reenacting precisely the same provision if the
District Courts judgment were vacated.). The proposal of a bill falls far short of any authority supporting voluntary cessation.
2. The court of appeals sua sponte conclusion
that the case has been mooted by the Browns relocation to Nevada to avoid prosecution, and the subsequent running of the statute of limitations during
the pendency of this litigation, equally implicates the
questions presented in this petition. Contra Opp. 3233. The statute of limitations is only relevant if Respondents non-binding new prosecution policy has in
fact mooted the case and extinguished the possibility
of prosecution on their return. Otherwise, the Browns
are left in the position of moving their family back
to Utah under the specter of Respondents office or
any subsequently elected Attorney General publicly
threatening them with prosecution once again. Similarly, the court of appeals sua sponte finding that the
Browns relocation to Nevada moots the case depends
directly on its de novo supplantation of the district
courts contrary conclusion that [i]t is clear that the

13
Browns would like to return to Utah and that they expect to do so once the fear of prosecution is lifted. Compare App. 41-50 with 850 F. Supp. 2d at 1244 and 1254;
see also Pet. 16-17. Thus, a decision by this Court
adopting Petitioners positions on the questions presented would similarly require (at the very least) a remand with instructions to apply the appropriate rules
of law.
3. Finally, Petitioners have no agenda to ask this
Court to revisit any of its holdings on money damages
without invitation from the Court. See Opp. 33-34.
------------------------------------------------------------------

14
CONCLUSION
This Court should grant the petition for certiorari.
Respectfully submitted,
JONATHAN TURLEY
(Counsel of Record)
THE GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
2000 H St., N.W.
Washington, DC 20052
(202) 994-7001
jturley@law.gwu.edu
THOMAS M. HUFF
Attorney-at-Law
P.O. Box 2248
Leesburg, VA 20177
thuff@law.gwu.edu
ADAM ALBA
MAGLEBY CATAXINOS
& GREENWOOD
170 South Main Street,
Suite 1100
Salt Lake City, UT 84101
January 3, 2017